State v. Cunningham

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Appellant,

v.

Michael B. Cunningham, Respondent.

Appeal From Greenville County

 Charles B. Simmons, Jr., Special Circuit
Court Judge

Unpublished Opinion No. 2004-UP-615

Submitted November 1, 2004 – Filed December
7, 2004

REVERSED

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W.
McIntosh, Assistant Deputy Attorney General Salley W. Elliott

Senior Assistant Attorney General Harold M. Coombs, Jr., all 
of Columbia;  and Solicitor Robert M. Ariail, of Greenville, for Appellant.

C. Carlyle Steele, of Greenville, for Respondent.

PER CURIAM:  This case comes before us on appeal from the circuit court’s
decision reversing and remanding respondent’s conviction in magistrate’s court. 
We reverse the circuit court.1

FACTUAL/PROCEDURAL BACKGROUND

Respondent, Michael B. Cunningham, was charged with
littering and appeared before the magistrate.  Waiving his right to counsel
and to a jury trial, he was found guilty following a bench trial.  Cunningham
appealed to the court of common pleas asserting, among other things, that he
should receive a new trial because the main witness at the trial “did not testify
directly, but rather had [the] officer read his statement which was improper
hearsay.” 

The magistrate filed a return which included as follows:

The State represented
by Master Deputy, Ben Forrester, presented a sworn statement signed by the victim,
Mr. V.L. Sloan, about the incident which occurred in his presence on the date
of May 6, 2002.  The victim was present in the courtroom and stated for the
record that he was the author of that statement.  He was also prepared to answer
any questions that the defendant, Michael Cunningham, might have.  He did not
ask Mr. Sloan anything.  This was not improper hearsay.

*                 *                 *

The defendant did testify
in this bench trial merely stating that Mr. Sloan must have been mistaken when
he stated that he saw the defendant throw a bag of trash out of his truck in
the early hours of May 6, 2002 while the moon was still in the sky and dawn
was beginning.  The victim was standing by his house not more than 10 feet from
the road when he saw him throw the trash out.

On appeal to the circuit court, Cunningham’s counsel asserted
Cunningham was denied the right to confront witnesses against him by admission
of the hearsay statement, and admission of the hearsay evidence was not cured
by the right to cross-examination.  The State, while not conceding the statement
was improper hearsay, argued the issue was not properly preserved for appeal,
as there was no objection below to the reading of the victim’s statement.  The
circuit court agreed that a contemporaneous objection was required, but found
“it would be speculation” to assume there was no objection since there was no
transcript from the trial.  Thereafter, by order dated September 26, 2003, the
circuit court reversed Cunningham’s conviction and remanded for a new trial. 
The circuit court judge found the reading of the statement of the witness was
inadmissible hearsay and, because the return did not address whether an objection
was made to the reading of the statement, a conclusion by the court that no
objection was made would involve speculation by the court. 

LAW/ANALYSIS

The State appeals, asserting the circuit court erred in reversing
Cunningham’s conviction because the record failed to show Cunningham made a
contemporaneous objection to the admission of the evidence at the trial level. 
We agree.

A circuit court has only appellate jurisdiction over a judgment from magistrate
court.  State v. Adler, 278 S.C. 66, 67, 292 S.E.2d 185, 186 (1982). 
In criminal appeals from magistrate court, the circuit court may not conduct
a trial de novo, but instead reviews for preserved error
raised by appropriate exception.  State v. Henderson, 347 S.C. 455, 457,
556 S.E.2d 691, 692 (Ct. App. 2001).  It is axiomatic that in order to preserve
an issue for appellate review, a party must make a contemporaneous objection,
and an issue which is not properly preserved cannot be raised for the first
time on appeal.  State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869,
873 (1994).  An issue must be both raised to and ruled upon by the trial judge
to be preserved for appellate review.  State v. Dunbar, 356 S.C. 138,
142, 587 S.E.2d 691, 693 (2003).

A magistrate’s return is the official record of the trial proceedings,
and an appellate court may not consider facts not included within the return. 
State v. Brown, 358 S.C. 382, 387-88, 596 S.E.2d 39, 41 (2004).  The
burden is on the appellant to provide a sufficient record from which an appellate
court can make an intelligent review.  State v. Mitchell, 330 S.C. 189,
199, 498 S.E.2d 642, 647 (1998); State v. Freeman, 319 S.C. 110, 122,
459 S.E.2d 867, 874 (Ct. App. 1995).

The circuit court judge determined, because the return did not
address whether an objection was made to the reading of the statement, a conclusion
by the court that no objection had been made would involve speculation by the
court.  However, a conclusion that such an objection was made is equally speculative. 
Here, the only record from the trial level in this case is the magistrate’s
return.  There is simply no evidence of record that Cunningham objected to the
admission of the evidence at the trial level or that it was in any manner raised
to or ruled upon by the magistrate.  See Roche v. S.C. Alcoholic Beverage
Control Comm’n, 263 S.C. 451, 455, 211 S.E.2d 243, 244 (1975) (the purpose
of an appeal is to determine whether the trial judge erroneously acted or failed
to act, and where the appellant’s contentions are not presented or passed on
by the trial judge, such contentions should not be considered on appeal).  As
previously noted, in criminal appeals from magistrate court, the circuit court
may review only for preserved error.  Further, the magistrate’s return is the
official record of the trial proceedings, and the circuit court, sitting in
an appellate capacity, is not allowed to consider any facts not included within
the return.  The return does not reflect any objection was made to the admission
of the evidence Cunningham challenges on appeal.  Because the record failed
to reflect the issue raised on appeal was raised to the trial court, we hold
the circuit court erred in reversing Cunningham’s conviction on that basis. 

For the foregoing reasons, the circuit court order is reversed
and Cunningham’s conviction is reinstated.

REVERSED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.

1 We decide this case without oral argument pursuant
to Rule 215, SCACR.